Bad result for the defendant in an ACA case

United States v. Polk, 61 F.4th 1277 (10th Cir. 2023) Holding: A defendant convicted under the Assimilative Crimes Act (ACA) is not eligible for state-law safety valves that “conflict” with federal sentencing policy. Mr. Polk was charged federally for driving under the influence by way of the Assimilative Crimes Act (ACA). Mr. Polk is Native American, and the DUI occurred in Oklahoma on reservation land. He pleaded guilty. The mandatory minimum in Oklahoma for this offense is 4 years with a maximum of 20 years. However, in Oklahoma there is also a “safety valve” law that allows a sentencing judge to go below the statutory minimum in a variety of circumstances, which is much broader than the safety valves available under federal sentencing law. Mr. Polk argued that he should be eligible for this safety valve. The district court denied his request on the ground that the safety valve did not agree with federal sentencing law. The ACA covers criminal conduct in federal land that is not covered by its own federal statute. It “generates a federal offense using the laws of the state in which the reservation is located,” borrowing from state law to fill in the gaps. It requires that the defendant receive a punishment “similar” to the one they would receive in state court. Typically, this means that the sentence should be within the minimum/maximum range, but it doesn’t mean that the federal district court must adhere to every convention or rule of state sentencing law. And if Congress has created a “contrary penal policy,” the district court is bound to follow that. To the extent that there is a “conflict,” federal law wins. Here, the district court and the appellate court both focused on the fact that § 3553 only provides for two grounds upon which federal sentencing judges may go below the statutory minimum: subsections (e) and (f) (for substantial assistance and when the conviction is for certain listed drug offenses and satisfies five factors) neither of which was relevant here. The Tenth Circuit called this a “direct tension between what state law permits and what federal law forbids.” As a result, Mr. Polk was not eligible for Oklahoma’s safety valve. Question: Is it actually a “direct conflict” where one law is more expansive that another? And strict adherence to federal sentencing doesn’t seem like the answer if the overarching goal aim of the ACA is to keep things consistent with what would happen in the state system. The federal sentencing scheme is not designed to address an offense like a DUI, so it makes sense that it doesn’t set forth a safety valve that would capture that kind of conduct. It sounds like Mr. Polk focused on the fact that § 3553 doesn’t mention the ACA (inferring that Congress would have explicitly excluded if it wanted to), and the court insisted the failure to mention it meant just the opposite. This ruling seemingly puts into question an issue previously won by the defense in the District of New Mexico, too, which is the applicability of the NM law allowing for mitigation of the basic sentence in cases where the defendant is convicted and sentenced under state law pursuant to the Assimilative Crimes Act.

What does a district court need to say about the sentence before asking an accused to allocute in order to commit reversible plain error?

In United States v. Slinkard, 2023 WL 2484934 (10th Cir., Mar. 14, 2023) (NDOK) and United States v. Benitez-Jimenez, 2023 WL 2484646 (10th Cir., Mar. 14, 2023) (NDOK), the panel explains what a district court cannot say before an accused’s allocution. In Slinkard, before allocution, the district court said “There is no way in good conscience that I could ever allow this defendant to be among the public or near any child.” Then the court asked Slinkard if he had anything to say. He did not. The court sentenced him to two concurrent life terms. In Benitez, the district court ruled on a downward variance request before asking Benitez if he something to say. The court explained that “based upon the information provided by the parties, I will not vary from the advisory guideline level as the factors fail to separate this defendant from the minerun [sic] of similarly situated defendants; therefore, defendant’s motion . . . is denied.” Thereafter, the court invited Benitez to allocute. Benitez apologized for his misconduct and promised he would not misbehave again. The court sentenced him to a prison term of 57 months, the high end of the guideline imprisonment range. Both cases were reviewed for plain error by the same panel. In Slinkard it held that the district court clearly erred by “definitively announcing Mr. Slinkard’s life sentence before allocution.” According to circuit precedent, being denied the right to allocute is presumptively prejudicial and thus satisfies plain error’s third prong. Only an “extraordinary circumstance” overcomes this presumption. Here, the government didn’t identify any extraordinary circumstance. Besides, there was a possibility of a less severe sentence because the guideline imprisonment range was 30 years to life and Slinkard had been given a 30 year term in state court for the same misconduct. The fourth plain error element also was satisfied. Denying allocution “subverts public values.” The judicial proceedings are “seriously affected” when the district court does not give the accused a “meaningful opportunity” to speak and “present mitigating circumstances.” The opportunity to allocute was not meaningful because the court told Slinkard he was not getting a prison term less than life. The panel said on remand the case should go to a different judge. The appearance of impropriety was too marked not to do so. The court’s commentary at sentencing suggested a strong personal belief which would be difficult to set aside on remand. Given that “preserving the appearance of justice” is an “essential purpose of the right of allocution” reassignment best ensures fairness. And assignment to a different judge would not impose a substantial burden on the judiciary. Unlike, Slinkard, Benitez did not convince the panel that he satisfied plain error’s four elements. The panel said the district court did not clearly and unambiguously communicate the specific sentence it would impose on Benitez when it ruled on his downward variance motion before his allocution. Although the district court might have conveyed it would impose a guideline sentence, that is not the same as announcing a specific sentence pre-allocution. Still, the panel noted that from the court’s comments Benitez reasonably could have concluded he was categorically precluded from arguing for a lower sentence and that in allocution he could not reargue the points he made in his motion. Although the court’s procedure may have been incorrect, it did not amount to plain error. “Even if [Benitez] inferred that the district court’s denial of his motion for variance precluded him from arguing for a variant sentence, the fact that the district court did not affirmatively prohibit from doing so means there is no plain error under” the circuit’s precedent. Benitez gets no relief because neither the circuit, nor the Supreme Court has held that “limiting the scope of allocution by implication” is “reversible” error.

Vehicle impoundment principles apply to search of backpack; evidence from backpack should have been suppressed

An important decision rejecting the government’s contention that a warrantless search of personal property does not require the exclusion of incriminating evidence because officers would have validly impounded that property and inevitably discovered its contents. In United States v. Braxton, 2023 WL 2377701 (10th Cir., Mar. 7, 2023) (CO), the panel decided that the circuit’s impoundment criteria from United States v. Sanders, 796 F.3d 1241 (10th Cir. 2015), which generally is used to determine the reasonableness of impounding a vehicle, applies also to personal property. It holds that the government did not meet its burden to show that the officers would have impounded Braxton’s backpack “under a reasonable, nonpretextual community caretaking rationale.” Thus, contrary to the district court’s finding, the gun the officers found inside the pack would not have been inevitably discovered. The district court should have suppressed the gun. When Braxton was arrested for selling drugs, he was “wearing a black backpack.” The officers took it off and put it on the sidewalk. They searched him and found crack cocaine and cash in his pockets. During the search Braxton yelled out to someone to “get my girl, Tan!” Less than 30 seconds later, Braxton’s girlfriend Tanyrah Gay walks up to the officers. Braxton tells her “get the money so you can bond me out.” Gay asks the officers if she can have the pack. They say no. When one picks up the pack, she asks, “I can’t take my pack?” They again say no. When one officer put Braxton into a patrol car, he said that Gay needed the money in the pack. She too said she needed the money because she was staying in a hotel. This officer also said no. Gay asked if the officer would at least write down her telephone number. He said that he’d get to that momentarily. Another officer took the pack and searched it on the hood of a patrol car. Inside he found a loaded gun with a pink handle. While he was still rummaging through the pack, Gay asked him if she could get her ID and bus pass from the pack. The officer told her to wait a moment. He then put the gun in an evidence bag. Needless to say, Gay never got the pack. Braxton was charged with possession of a firearm in furtherance of drug trafficking, possession of crack cocaine with intent to distribute and felon in possession of a firearm. In the district court, Braxton moved to suppress the firearm. He argued that the search of the pack was not justified as a search incident to arrest under the Tenth Circuit’s decision in United States v. Knapp, 917 F.3d 1161 (10th Cir. 2019). [There the court held that the warrantless search of Knapp’s purse could not be defended as a search incident to arrest because Knapp could not access weapons or destroy evidence within the purse after her arrest.]. The government conceded that search incident to arrest would not validate the search after Knapp. However, it convinced the district court that the gun should not be suppressed because officers would have inevitably discovered it after impounding the backpack and doing an inventory search. On appeal, the panel was not persuaded by this argument. It said under the facts here, the government could not prove that the gun inevitably would have been discovered by lawful means, that is by the community caretaking and inventory exceptions to the warrant requirement. The panel found that the principles from the vehicle impoundment cases are relevant in the personal property context. In Sanders, the court held that impounding a vehicle from private property must be justified by both (1) a standardized policy and (2) a reasonable, nonpretextual community caretaking rationale. 796 F.3d at 1248. The analysis of the second prong centers on a list of nonexclusive factors Sanders said were relevant to determining whether a reasonable and legitimate nonpretextual community caretaking rationale existed. The panel focused on the second prong and concluded that the list’s third factor, whether there was an alternative to impoundment, determined the outcome here. As it did in the district court, the government contended that the officers would have inevitably discovered the gun because they were obligated to take the pack back to the station to prevent its theft and to protect the community from its possibly dangerous contents. The panel acknowledged that Denver police department policy directed officers to bring personal property to the property section for safekeeping. But, the panel said, “the existence of and compliance with such a policy does not by itself establish a reasonable community caretaking rationale.” The panel stressed that the officer who testified at the suppression hearing “provided scant explanation for why he would have refused Gay’s requests . . . or would not have asked Braxton about giving her the backpack.” The proper inquiry under this third factor, the panel said, is “whether an alternative to impound exists and is not focused on who suggested that alternative.” Here, there was a plausible alternative to impoundment. The officer’s testimony did not explain why, given Gay’s requests, that he needed to impound the pack to keep it safe for its owner. It didn’t matter that Braxton did not directly ask the officers to give the pack to Gay. She asked twice for the pack and both times the officers refused to give it to her. There also was evidence that the two were in a relationship. At a minimum then, a “reasonable officer[] dealing with the backpack in a lawful manner would have inquired further about whether [to] give the backpack to Gay, either by asking Braxton if he wanted Gay to take the backpack or by inquiring into their relationship.” As to this last point, the panel emphasized that circuit precedent “establishes that officers generally act unreasonably when they ignore or shut down obvious alternatives to impoundment.” Given that the officers could have given Gay the pack it was not “inevitable that the officers would have validly impounded the backpack under a reasonable community caretaking rationale.” Thus, the impoundment here was not reasonable because there were “clear and promptly available alternatives.”